PEOPLE v. MUSCOREIL (1997)

 Upon our review of the record, we conclude that defendant's conviction of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) is supported by legally sufficient evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   There is no merit to the contention of defendant that Supreme Court erred in denying defendant's request to reopen the suppression hearing based upon the prosecutor's alleged failure to turn over Brady material (see, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215).   Reopening a suppression hearing is committed to the discretion of the trial court (People v. Hults, 150 A.D.2d 726, 727, 542 N.Y.S.2d 18, affd 76 N.Y.2d 190, 557 N.Y.S.2d 270, 556 N.E.2d 1077).   The court erred, however, when it imposed a one year definite sentence to be served consecutively to an indeterminate sentence previously imposed on another conviction.   Because the offense underlying the definite sentence of imprisonment was committed prior to the time the indeterminate sentence was imposed, defendant's definite and indeterminate sentences must run concurrently (see, Penal Law § 70.35;  People v. Leabo, 84 N.Y.2d 952, 620 N.Y.S.2d 820, 644 N.E.2d 1376;  People v. Adams, 109 A.D.2d 745, 486 N.Y.S.2d 64).

Judgment unanimously modified on the law and as modified affirmed.

MEMORANDUM: